Wednesday, January 25, 2006

My Roller Coaster Ride with Subodh Chandra

I went into the MTB interview with Attorney General candidate Subodh Chandra with high expectations. An acquaintance from the Kerry campaign invited me to a fundraiser for him; a friend from the RON campaign is working for him. I respect both of their opinions and their opinions are high.

I also know what it means that he gets accolades for cleaning up the Cleveland Law Department. I worked with a refugee from the Mike White-era Law Department. As troublesome as the environment was in the office where we met, he said his previous gig was so much worse it didn't faze him. Trust me, that was saying something.

I also went in with an above-average appreciation for importance of the AG race. I worked on the Lee Fisher campaign when he lost to Betty Montgomery. I worked as a prosecutor throughout the Montgomery administration. I remember how hopeful my bosses were by her engagement on criminal justice issues and how disappointing she was as she politicized the office. I also fumed as she ran for reelection as the woman who revamped the Bureau of Criminal Identification and Investigation, but failed to advocate for the resouces to fully fund it.

So like I said, high expectations. Unfortunately, Chandra started to lose me early on. In a discussion of H.B. 3, he says that it's unconstitutional and his instructions to Board of Elections would be not to enforce it. Here's the thing. The AG's job includes defending State laws from challenge. When Richard Cordray ran for AG on a platform of not defending the State's position in the DeRolph case, I felt he was grandstanding and he lost my vote. (No I didn't vote for Montgomery. I wrote in my wife.)

Chandra believes that the AG's job in the first instance is to be "the people's lawyer." Because he swears an oath to uphold the Constitution, he has no duty to "defend the indefensible." At the farthest margins, this is persuasive (though at least arguable.) The problem is how the AG makes the determination.

I believe Chandra would agree with me that an AG's personal belief that a statute is unconstititional, with nothing more, is insufficient. At the same time, I believe he is is saying that he would be willing to declare a statute indefensible even without clear controlling authority. How that middle ground is sliced up is everything in this discussion and, unfortunately, working through that methodology would take the better part of an hour in itself. I certainly didn't get a satisfactory answer to the two questions I asked to get at it.

Also giving me pause was his pledge to take public entities to court for failing to comply with the law. He mentioned specifically taking Blackwell to court for he registration form shenanigans during a hypothetical Chandra administration and at least threatening to take the legislature to court for failing to comply with Derolph.

Again, this runs afoul of the traditional view of the AG's office as the attorney for the public entitites he is threatening to file against. Generally the law frowns upon suing one's own clients.

My view of Chandra bounced back up during a discussion after the recording period. George wanted to limit the time for practical reasons, but Chandra was willing to talk further. I followed up on the notion of suing statutory clients, which led to a wide-ranging, highly technical discussion which you all are mercifully spared listening to.

The upshot is that Chandra understands the thorny issues confronting him and will proceed cautiously. That's all I ask. I agree with him on the issues, but as a lawyer, I don't want any elected official overreaching his authority.

Meanwhile, I couldn't help but be impressed by his intellect, his encyclopedic knowledge of Attorneys General throughout the U.S. and his smooth but unassuming conversational style. He is a formidable candidate who understands the untapped potential for good in the Ohio Attorney Generals' office.


Ohio 2nd said...

So if Tom Brinkman's anti-abortion bill passes AG Chandra would be forced to enforce it, even though it is obviously unconstitutional?

Scott Piepho said...

Under Chandra's analysis, the answer is clearly "No." In that case, the clear controlling legal authority says the law is unconstitutional and, he says, his oath to uphold the Constitution demands he refrain from defending the law.

Three problems arise. The first is how does he decide the vast majority of cases which lie in the middle between clearly Constitutional and clearly Unconstitutional. If, when HB 3 is challenged, the Federal Circuits are split on whether its modified ID requirement is Constitutional, what is his duty? (I asked that very hypothetical and he demurred saying it was too complex. Whatever.)

The second problem is that we establishing the metes and bounds of the Constition by litigating them. The notion of the AG refusing to litigate an unsettled quetion on behalf of the State based on his personal view of what the outcome should be is troubling. So much more so if the issue clearly involves the will of the voters -- for example the gay marriage ban. Since still I'm not sure exactly how Chandra decides the close questions, I'm not sure whether I agree with him on this. I'm also only a day or so into thinking it through as it is a new take on the AG's duties as far as I'm concerned.

The third problem is political. By staking out this position, Chandra is injecting social issue politics into the race. He can make a really strong nonideological case that he is a better choice to lead the office than Montgomery. Query whether he can make as strong a case if people think his views on gay marriage and abortion will affect how he does his job.

All this facinates me and I intend to research and write further on it, in keeping with the wonkery-verging-on-wankery format of this blog.

Ohio 2nd said...

Kewl. It's a very interesting question. Something I never would have thought of.

Anonymous said...


My first impression and thoughts is that what Chandra advocates is nothing more than what has been going on at the national level for a long time.

Gonzales is clearly not enforcing the law in a number of areas and is deciding constitutional issues from his office.

I think this is more egregious than chandra's position, simply on the basis that Chandra would be elected, whereas Gonzales is not.

Furthermore I think you have to accept that there is a political element to this, otherwise the position would not be an elected one.

From what I have heard Marc Dann offers a far great expansion of the AG's office wanting to bring many of the powers currently held by county prosecutors into his role.

If Chandra was unwilling to enforce or challenge a law based on constitutionality - folks would be free to challenge him on that in higher courts I believe.

As AG is he bound to side and argue the merits of a case in reflection of the legislature or voters or is he bound only by his oath of office ? For example if someone were to bring suit against issue 1 is he not free to also join in that argument, arguing its unconstitutionality ?

I think your final problem is not a problem at all. AG is a partisan office and hence ideology is one aspect of it.

interesting thought provoking stuff.

Anonymous said...

Very good questions that save me some typing. Here's one that remains.

Are you trying to tell us that your conversation with Chandra suggests if elected he will engage in setting precedent(s) - precedent(s) that a later (let's say Republican) AG could use - in a "less than agreeable to us" way? (Although Russell suggests these are inherent powers... works for me!)

I'd also love to see an further analysis of his contrasts to Marc Dann's on such a possible expansion of powers (if you get the chance Pho).